Summary of Rental legalities pre, during and post covid-19

South Africa’s property industry is dynamic and diverse with different players involved. These include buyers, sellers, landlords, tenants, property agents, financing houses and even construction and maintenance service providers.

The rental market in particular plays an integral role by accommodating a segment of the population looking for rented accommodation. The rental market, however, has been deeply affected by Covid-19 with tenants and landlords around the country being forced to quickly adapt in order to make the most of a difficult situation.

State of the rental market

Recent statistics show that landlords across the country are struggling to get tenants for their properties, or to collect rent from existing tenants, as the coronavirus crisis continues to wreak havoc on household incomes. Recent stats show that:

• The number of vacant rental properties in SA has increased by 50% since the start of the year, as the coronavirus crisis wreaks havoc on household incomes.

• Across the market, 11% of properties are now standing empty.

• And only 60% of tenants of pricier properties are paying rent on time.

What does the law state regarding the relationship between landlords and tenants in South Africa?

The relationship between landlords and tenants is regulated by the Rental Housing Act. This act regulates the relationship between landlords and tenants and it provides for dispute resolution by the Rental Housing Tribunal. It was brought about to protect the rights of the landlord and the tenants alike.

What rights do tenants enjoy under this act?

• The tenant has the right to privacy. The landlord may only inspect the premises after reasonable notice to the tenant.

The landlord may not:

• Search tenant’s person, property or home or seize the tenant’s possessions, except in terms of law via court order.

• Infringe the privacy of the tenant’s communications.

• Discriminate against a tenant or prospective tenant (or members of the household) based on race, gender, sex, pregnancy, marital status, sexual orientation, ethic or social origin, colour, age, disability, religion, conscience, belief, culture, language or birth.

What rights do landlords enjoy under this act?

• Right to prompt and regular payment of rental and other payments.

• Right to recover unpaid rental or any other amount that is due and payable after obtaining a ruling from the tribunal or by court order.

• Right to terminate the lease on grounds that do not constitute an unfair practise.

• Right to repossess the property after first obtaining a court order.

• Right to claim compensation for damage to the property if caused by the tenant or his/her visitor.

How has the law been applied during lockdown?

In order to protect tenants and consumers during lockdown especially in the midst of unstable and reduced income, government issued gazettes in this regard.

• Government Gazette No: 43167 dated 26 March 2020 makes it clear that “all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution is suspended with immediate effect for the duration of the lockdown.”

• The amended regulations issued in terms of section 27(2) of the Disaster Management Act dated 16 April 2020 [Regulation 11CA] states that “no person may be evicted from their place of residence, regardless of whether it is a formal or informal residence or a farm dwelling for the duration of the lockdown.”

• This means that even a landlord who is in possession of a court order authorizing the eviction of a tenant or the sale in execution of a tenant’s property may not lawfully proceed with such action.

• Irrespective of the lockdown, a landlord is not entitled to terminate services without a court order. Because landlords are not be able to obtain such an order during the period of lockdown, any termination of services was deemed unlawful.

What is the current legal climate and what’s the way forward?

• While there has been some relaxation of the rules governing the stay of evictions – a sense of humanity and decency are still being called for when it comes to the rental market.

• Under Alert Level 3, eviction orders could be applied for and processed but not executed. Whether or not they can be executed now depends on the wording of the order. Some eviction orders were granted in Alert Level 3 with a stay of execution “until the end of Alert Level 3”. These may be executed. But if the wording was such that the order was “stayed until the regulations permit”, it may be necessary to appear in court to enforce the order.

• Any eviction granted under Alert Level 1, may not be executed until after the national state of disaster has lapsed or has been terminated. The only exception to this is where the court decides it is not just and equitable to suspend the order. This rule extends to the eviction of occupants from and demolition of shacks, following a spate of land invasions and shack demolitions experienced around the country.

• Provided the tenant has engaged the landlord in good faith to make arrangements to “cater for the exigencies of the disaster”, the courts are very unlikely to grant an eviction order purely on the basis of non-payment of rent.

• Furthermore, the regulations have declared unfair the imposition of penalties for late payment where the default had been caused by the lockdown or the state of disaster. At most, landlords may charge interest on late payments.

The above in a nutshell is a summary of rental legalities pre, during and post COVID-19.